O'Connell, R (on the application of) v The Parole Board & Anor

Before the court are an appeal and a cross-appeal brought with permission granted by the court below by the Secretary of State and Mr O’Connell (to whom I will refer for convenience as “the appellant”) respectively against orders made by the Divisional Court (Latham LJ and Simon J) on 13 November 2007 in proceedings in which the court had to consider three questions, as I shall shortly explain.

The appeal and the cross-appeal both concern aspects of the application or otherwise of Article 5(4) of the European Convention on Human Rights to the service of an extended sentence passed under section 227 of the Criminal Justice Act 2003 (“the 2003 Act”). It is convenient first to explain the nature of such an extended sentence. It forms part of a package of sentencing provisions introduced by the 2003 Act to deal with dangerous, sexual and violent offenders; that is to say, offenders judged by the sentencing court to prevent a significant risk of serious harm to the public. Serious harm means:

“death or serious personal injury, whether physical or psychological” [section 224(3)]:

“Extended sentence under section 257 may be imposed on an offender over the age of 18 for an offence committed after 3 April 2005, which is a “specified offence” but not a “serious offence”. Schedule 15 to the 2003 Act provides for specified offences which are violent or sexual offences; they are not serious offences if they are punishable by a maximum prison term of less than ten years. The court must impose an extended sentence if it considers that there is a significant risk to members of the public of serious harm occasioned by the Commission by the offender of further specified violent or sexual offences” [section 227(1B)].

By section 227(2) the term of an extended sentence, the whole of which is described as a “sentence of imprisonment”, is equal to the aggregate of what are called “the appropriate custodial term” and “the extension period”. The appropriate custodial term is the term up to the maximum permitted for the offence and subject to a minimum of twelve months which would otherwise be imposed under section 153(2). Section 153(2) requires that a custodial term be for the shortest period which, in the opinion of the court, is commensurate with the seriousness of the offence or the combination of the offence and one or more offences associated with him. The extension period is the period for which the offender is to be subject to licence after release. It must be of such length as the court considers necessary for the purpose of protecting members of the public from serious harm occasioned by the commission by the offender of further specified offences. It must not be longer than five years in the case of a specified violent offence or eight years in the case of a specified sexual offence: section 227(3). The full term of the extended sentence must not exceed the maximum term permitted for the offence: section 227(4).

The initial release of a prisoner serving an extended sentence under section 227 is governed by section 247. By section 247(2) the Secretary of State is obliged to release such a prisoner as soon as half the appropriate term has elapsed and the parole board has directed his release. The Board may not so direct unless satisfied that it is “no longer necessary for the protection of the public that the prisoner should be confined”: section 247(3).

Subject to certain qualifications, if the prisoner is not released under section 247(2) and (3) he will be released on licence at the end of the appropriate custodial term: section 247(4) and (7). After release, the licence remains in force for the remainder of the sentence: section 249(1).

I turn to the facts of the case. On 20 May 2005 the appellant pleaded guilty in the Magistrates’ Court to an offence of assault occasioning actual bodily harm upon his wife committed on 14 May 2005. He was committed for sentence to the Crown Court. On 26 July 2005 at the Chelmsford Crown Court he received an extended sentence under section 227 with a custodial period of two years and an extension period of three years. His parole eligibility date --that is the date when half his appropriate custodial term expired -- was accordingly 25 July 2006. However, on 18 July 2006 the Parole Board, without a hearing, had decided not to direct his release. He lodged a judicial review claim form seeking to challenge that decision. Judicial review permission was initially refused by Lloyd Jones J on the papers on 13 November 2006 but later granted by Sullivan J, as he then was, after a hearing on 12 January 2007. The case was heard with three other conjoined appeals in the Divisional Court sub nominee R (Brooke & others) v The Parole Board [2007] EWHC Admin 2036, judgment being given on 6 July 2007 by Hughes LJ and Tracey J.

The court accepted an argument advanced by the appellant and his fellow claimants to the effect that the Parole Board did not possess such independence from the executive as the law required. In the three cases other than the appellants, it was not disputed that Article 5 of the European Convention on Human Rights applied, and the court held in those cases that, in the context in question, the Parole Board lacked the independence required both by Article 5 (4) and the common law. In the appellant’s case, the court declared that the Parole Board did not meet the common law standards of independence. The Secretary of State‘s appeal on the independence issue has been dismissed: [2008] 1 WLR 1950. There were, however, three other issues before the Divisional Court which were, as I understand it, adjourned for want of time to a further hearing. They were as follows:

“1.

Does Article 5(4) apply to a person serving an extended sentence imposed under s. 227 of the 2003 Act as soon as he has served one half of the appropriate custodial term?

2.

Did article 5(4), or alternatively the common law, entitle [the appellant] to an oral hearing before the Parole Board in the circumstances of the case?

3.

What is the appropriate test for the Parole Board to apply under s. 247(3) of the 2003 Act when determining whether it remains necessary for the protection of the public that the prisoner should be confined?”

A different constitution of the Divisional Court -- Latham LJ and Simon J -- heard argument on those matters on 15 October 2007. In their judgment handed down on 13 November 2007 they answered question 1 in the affirmative (see paragraph 14 of the judgment); question 2 in the negative (paragraph 24); and held that question 3 was academic on the facts of the case and should be left for determination in a case where it arose as a live issue. Questions 1 and 2 are before us on this appeal.

The Divisional Court granted permission to appeal to the appellant on question 2 and permission to appeal to the Secretary of State on question 1. It is convenient first to deal with question 1 and the Secretary of State’s appeal. I repeat the question for convenience: Does Article 5(4) apply to a person serving an extended sentence imposed under section 227 as soon as he has served half the appropriate term? The Divisional Court, at paragraph 5, provided a more pointed formulation of the question as follows:

“The question raised by the first issue is whether detention during the second half of the custodial period of an extended sentence under the 2003 Act is justified by the original sentence, so that there is no separate authority for the detention engaging Article 5(4) or whether in the second half of the custodial period, detention is justified on a fresh legal basis, that is the decision of the Parole Board not to direct release.”

I should here set out the material provisions of Article 5:

“1.

Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court;”

Then I may go to paragraph 4:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take
proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

Ms Kaufmann for the appellant submits on question 1 -- and I put the matter broadly at first -- that, once half of the appropriate custodial term has expired, the legality of the prisoner’s continued detention in a section 227 case depends upon a new issue: the requirement to assess his dangerous and continued detention will not be justified by the original order of the criminal court passing sentence. Accordingly, Article 5(4) requires the availability of a fresh judicial determination, which may be satisfied by the Parole Board itself provided it follows proper procedures.

In the Divisional Court Latham LJ, having reviewed a series of relevant authorities, said this on question 1:

“14.

It seems to me, having considered all these authorities, that the question as to whether or not Article 5(4) is engaged is not answered by any formal analysis of the original order of the court in cases such as the present. The question is whether, bearing in mind its purpose, namely to prevent arbitrariness, it has a function to perform and the particular circumstances of the case in question. In the present case, the decision as to whether or not to direct release is critical to the claimant’s entitlement to release after he has served one half of the custodial period. That decision is capable of being an arbitrary decision unless controlled by a mechanism which is Article 5(4) compliant. In other words there is a clear purpose to be served by the Article in this context, in exactly the same way as it has a function to perform in the case of indeterminate sentences.”

Accordingly Latham LJ, with whom Simon J agreed, answered question 1 in the affirmative.

On 21 January 2009 their Lordships’ opinions were published in the case of R (Black) v SSHD [2009] UKHL 1. The question there was whether determinate sentenced prisoners, once their parole eligibility date arrives, are entitled, by force of Article 5(4), to a speedy judicial decision as to the legality of any further detention (see per Lord Brown of Eton-under-Haywood paragraph 59). By a majority of four to one (Lord Phillips dissenting) the House of Lords held that they were not. The decision of the Divisional Court in the present case was, on the face of it, expressly overruled. Lord Brown said this:

“81.

Cogently though these judgments are reasoned, and broadly sympathetic though I am to the conclusions they arrive at, I have finally come to regard them as mistaken. In the end they seem to me to involve widening the reach of article 5(4) beyond its proper limits, certainly beyond its hitherto recognised scope. Article 5(4) cannot be held to apply merely because it would be useful if it did -- because ‘it has a function to perform’, ‘a clear purpose to be served’: O Connell [2008] 1 WLR 979, para 14. There is suggested to be a risk of arbitrariness in the operation of the parole system if the Secretary of State can overrule the Parole Board on the question of risk. But the Secretary of State’s decision is, of course, judicially reviewable and, if found arbitrary or irrational, it will be struck down. There was, indeed, an irrationality challenge in this very case but it failed before the judge and permission to appeal was refused in respect of it. There is nothing intrinsically objectionable (certainly in Convention terms) in allowing the executive, subject to judicial review, to take the parole decision, notwithstanding that it involves rejecting another body’s recommendation. In one sense it may be said to be putting the cart before the horse. And, as we said in Clift, it is indefensibly anomalous. But it is not contrary to article 5(4).

82.

There was no need for the Parole Board to have been involved in the process at all: a state could perfectly lawfully, and consistently with the Convention, leave the entire question of release, whether absolutely or on licence, and whether throughout the sentence or only after a given period, solely to the executive. Does then the fact that the United Kingdom has chosen to give the Parole Board a role in the process and statutory directions as to how to approach that role, and has chosen to fix precisely the period within a determinate sentence during which the prisoner is to be considered for parole (the period before which he cannot be released and after which he must be released), mean that article 5(4) is necessarily thereby engaged so that the board’s decision must be final?

83.

In my judgment not. The essential contrast struck by the European court is between on the one hand ‘the administrative implementation of the sentence of the court’, for example decisions regarding ‘early or conditional release from a determinate term of imprisonment’ (para 87 of the court’s judgment in Stafford 35 EHRR 1121 set out at para 67 above) and on the other hand ‘fixing the tariff’ and later determining the length of post-tariff detention in life sentence cases. The administrative implementation of determinate sentences does not engage article 5(4); the decision when to release a prisoner subject to an indeterminate sentence does.

84.

Cases such as Van Droogenbroeck 4 EHRR 443 and E v Norway 17 EHRR 30 to my mind ultimately weaken, not strengthen, the respondent’s argument. As the court observed in Van Droogenbroeck (see para 68 above), the detention provided for there was ‘striking for its relatively indeterminate character’ -- analogous therefore to a life sentence considering the impact of article 5 on decisions whether or not to release. In the final analysis, it seems to me one thing to say that ‘new issues affecting the lawfulness of the detention’ (Strasbourg’s core and oft repeated touchstone for determining when article 5(40 is engaged) arise when assessing dangerousness in the post-tariff period of a life sentence (there being otherwise no finite end to a term which, everyone agrees, in the great majority of cases was never meant to last for life); quite another to apply the same approach to the release of determinate sentence prisoners.

85.

Certainly nothing in the Strasbourg jurisprudence affords any support for Mr Owen’s contention that the two categories should be assimilated and, even were I too conclude that the European court might now be prepared, notwithstanding its earlier dicta and admissibility decisions on the point, to extend the reach of article 5(4) to encompass also determinate sentence prisoners once they become eligible for parole, I would feel bound, consistently with the approach dictated by R (Ullah) v Special Adjudicator [2004] 2 AC 323, 350, para 20 (and the many subsequent endorsements of that approach), to leave any such development to the European court itself.”

Lord Rodger (paragraph 37), Lady Hale (paragraph 51) and Lord Carswell (paragraph 58) agreed with Lord Brown.

On the face of it, as I have said, the references to this present case, in the shape of the decision of the Divisional Court there set out in Lord Brown’s opinion, demonstrate, it would appear, that the decision of the Divisional Court has by that judgment been overruled. Ms Kaufmann, however, seeks to escape the coils of the Black decision by submitting that the nature of purpose of an extended sentence is entirely different from that of an ordinary determinate sentence such as Black was concerned with, and that a section 227 sentence has much more in common with the nature and purpose of indeterminate sentences provided for by the 2003 Act. In particular, the provisions relating to early release, as between section 227 and indeterminate sentences, are very closely aligned. On this footing Ms Kaufmann submits the Divisional Court was right to hold that Article 5 (4) was engaged, albeit for the wrong reasons. The Divisional Court in paragraph 14, which I have read, decided the case simply by reference to its perception of a useful function to be performed by Article 5(4) in the context of determinate sentences generally. That, says Ms Kaufmann, is the conclusion which was overruled by the House of Lords in Black, but it does not address the special provisions of a section 227 sentence and, in particular, the early release provisions of section 247 which, she says, differentiate this kind of sentence from what may be described as conventional determinate sentences. In common with life sentences and sentences of imprisonment for public protection, the prisoner’s release in a section 227 case turns on “new issues affecting the lawfulness of his detention”, namely the degree to which the prisoner is a danger to the public at the time of his punitive release. She refers to the Strasbourg decision in Van Droogenbroeck[1982] Volume 4 EHRR 443 as an example of a determinate sentence, or at any rate a determinate punitive regime, in which, nevertheless, for the reasons there given, the European Court of Human Rights held that Article 5(4) applied to the case. The theme of Ms Kaufmann’s submission is that a distinction of principle falls to be drawn between a simple determinate sentence regime in which the prisoner’s incarceration is justified from first to last by the order of the sentencing judge and one in which his incarceration beyond a certain point is in law only justified by the taking of a fresh decision, in this case the decision of the Parole Board to the effect that the prisoner is dangerous. In this latter class of case the fulfilment of Article 5(4) cannot be guaranteed by the act of the sentencing judge which is, so to speak, spent. It is required to be fulfilled by another measure which, as I have already said, may be satisfied by the Parole Board.

This reasoning, attractively though it was presented, seems to me in the end to be fundamentally inconsistent with their Lordships’ decision in Black. Their Lordships’ house has plainly overruled the Divisional Court in the present case. An extended sentence is a determinate sentence, and the House of Lords has held that, for the purposes of Article 5(4), it is to be treated in like case to other determinate sentences. Ms Kaufmann would not accept that conclusion. Ms Kaufmann would submit that their Lordships in Black simply did not address themselves to the section 227 form of sentence. I wholly accept that they did not expressly do so, but it is plain from references in the text, including paragraphs 32 and 33 of Lord Phillips’ dissenting opinion, that their Lordships have this case of O’Connell well in mind and, as it seems to me, it is simply unreal to suppose that they were not aware of the distinct provisions of section 247.

Mr Kovats for the Secretary of State submits that, in truth, the only difference between an extended sentence and a determinate sentence such as was directly considered in Black relates to the length of the licence period, and this has nothing to do with the question when the prisoner may be released. That, I think, with respect to him, is perhaps an oversimplification. There are certainly differences between, for example, section 247(3) and section 35 of the Criminal Justice Act 1991 dealing with long term prisoners. Moreover, there are undoubtedly affinities, as Ms Kaufmann has submitted, between the early release provisions in relation to indeterminate sentences and those which apply section 247 to a section 227 sentence. But in my view the key here is that a section 227 sentence is a determinate sentence of a kind implicitly contemplated by their Lordships in Black. It is to my mind inescapable that the House of Lords was there addressing itself to a dichotomy between determinate and indeterminate sentences (see the passages from Lord Brown’s opinion in paragraphs 81-85, which I have read, and those from Lord Phillips’ opinion paragraph 32-33 to which I have referred). This is, moreover, a principle distinction. In a determinate case, including a section 227 case, the sentencing judge has given lawful authority for the appellant’s potential detention during the whole prison term; that is to say, in a section 227 case, the whole of the appropriate custodial term. In an indeterminate case he has, as the law presently stands, given lawful authority only for the prisoner’s detention in the tariff period. In Van Droogenbroeck, upon which Ms Kaufmann placed much reliance, the European Court of Human Rights said this, having described the unusual punitive regime that was in play there under Belgian legislation:

“47.

As the Commission pointed out in paragraph 66 of its report, this system is fundamentally different from that — on which the court does not have to express an opinion on this occasion — of the conditional release of prisoners sentenced by a court to a period of imprisonment imposed by the court as being appropriate to the case.”

There was at the Bar some discussion of a further authority of the House of Lords in R (Giles) v Parole Board [2003] UKHL 42, [2004] 1 AC page 1. There the court was concerned with the regime of a more than commensurate sentence arising under section 22B of the Criminal Justice Act 1991. At paragraph 22 Lord Hope of Craighead said:

“For the appellant Mr Fitzgerald QC submits that a longer than commensurate sentence which is imposed under subsection (2)(b) contains two distinct components. The first is the punitive component. The second is, as he put it, the preventative one. On his analysis the second part commences when the punitive part of the sentence expires. His argument is that the lawfulness of the preventative part of the sentence depends on whether the prisoner continues to present an unacceptable risk to the public throughout this period. He submits that, as dangerousness is liable to change over time, this is not something that a judge can predict at the time of sentencing. So, if the sentence is not to be regarded as arbitrary during the preventative part, its lawfulness requires to be re-determined by the Parole Board periodically in accordance with article 5(4) of the Convention as soon as the punitive part of it has been served.”

That then was the submission. Lord Hope dealt with it at paragraphs 51 and 52:

“51.

It is plain from this summary that the basic rule which the European Court laid down in De Wilde, Ooms and Versyp v Belgium continues to apply. Where the prisoner has been lawfully detained within the meaning of article 5(1)(a) following the imposition of a determinate sentence after his conviction by a competent court, the review which article 5(4) requires is incorporated in the original sentence passed by the sentencing court. Once the appeal process has been exhausted there is no right to have the lawfulness of the detention under that sentence reviewed by another court. The principle which underlies these propositions is that detention in accordance with a lawful sentence passed after conviction by a competent court cannot be described as arbitrary. The cases where the basic rule has been departed from are cases where decisions as to the length of the detention have passed from the court to the executive and there is a risk that the factors which informed the original decision will change with the passage of time. In those cases the review which article 5(4) requires cannot be said to be incorporated in the original decision by the court. A further review in judicial proceedings is needed at reasonable intervals if the detention is not to be at risk of becoming arbitrary.

52.

I would hold that the present case falls within the basic rule. The review which article 5(4) requires was incorporated in the sentence which the judge passed under subsection (2)(b). This is because he fixed the period of the sentence which was needed to protect the public from serious harm. He was able to take this decision in the light of the information before him and, in the exercise of his ordinary powers of sentencing, to decide on the total length of the sentence which in all the circumstances was appropriate. As he was able to take this decision at the outset there is no risk that detention for the minimum period fixed by the sentence will become arbitrary. The appellant has no further right under article 5(4) to have his detention for the minimum period fixed by that sentence reviewed judicially.”

Ms Kaufmann also referred to R (Sim) v Parole Board [2004] QB 1288, but that dealt with a position arising where the prisoner was recalled to prison after expiry of the prison term imposed by the court. It does not seem to me to be of any assistance. Nor does R (Smith and West) [2005] Vol 1 WLR 350; there their Lordships’ House held that Article 5(4) was engaged in relation to the recall of a prisoner who had been let out on early release -- I think during the tariff term -- but special considerations plainly arise in the case of a prisoner who has been released and is then sought to be returned to prison.

In all these circumstances it seems to me that, both as a matter of principle and simply upon reading the text of their Lordships’ decision in Black, the provisions of Article 5(4) do not bite on the legality of the detention of a prisoner during the appropriate custodial term fixed by the sentencing judge for the purposes of section 227. That being so, for my part I would allow the Secretary of State’s appeal on question 1. If my Lords agree, it is, I apprehend, unnecessary to say anything about Ms Kaufmann’s further argument on question 2 relating to an oral hearing before the Parole Board. That would only arise for consideration if we were to hold that Article 5(4) had any application, and in any event the appellant has, we understand, been released.

I agree. Ms Kaufmann’s submission is founded on an attempt at assimilation of a section 227 prisoner with a prisoner serving an indeterminate sentence, and it is on this basis that she seeks to circumnavigate Black. However, for the reasons given by my Lord, Ms Kaufmann’s taxonomy is not sustainable. Not only is the extended sentence under section 227 a determinate sentence by statutory definition (section 237), it is also particularly significant that the issue that arises at the halfway stage in a section 227 extended sentence is, for all practical purposes, the same as that which arises at the halfway stage in a long-term determinate sentence under section 35(1) of the 1991 Act, the factual matrix of Black. But whilst the same essential exercise also arises when release from an indeterminate sentence is considered, there the prisoner does not have the benefit of a prescribed latest release date, which he does in relation to section 227 and section 35(1). I cannot escape the conclusion that the outcome of the present case is dictated by Black. I too would allow the Secretary of State’s cross-appeal and dismiss the appellant’s appeal in the manner described by my Lord. Like him, I feel it is unnecessary to consider further the question of the right to an oral hearing.

I agree with both judgments and have nothing to add.